dissenting. I agree with Justice Brown’s opinion finding no legal fraud on the basis of this record. However, I would go further insofar as I disagree with the majority’s finding of tortiously outrageous conduct compensable outside of the workers’ compensation system.
For more than ten years, Russ engaged in a pattern of activity to defraud the United States government. Nowhere in the record is this obvious fact rebutted. Yet Russ has somehow convinced my colleagues in the majority that during this lengthy time frame he was duped into this behavior by his immediate superiors with the explanation that this activity was necessary to make “a fair profit.” As Judge J. F. Corrigan aptly noted in his dissent in the court below, this conclusion “defies logic” in the face of the course and nature of Russ’s conduct. For ten long years, Russ falsified documents that he knew inflated the price on military contracts and then ordered the original documents destroyed to cover up the act. Yet my colleagues can’t seem to fathom the notion that Russ knew that his conduct involved serious wrongdoing. Russ acknowledged feeling “uncomfortable” when performing these criminal acts and yet relayed his reservations only to his immediate boss. Russ’s discomfort was later assuaged by a grant of immunity from the prosecution in exchange for his testimony against that same individual.
Accepting for the moment the unlikely assumption that Russ did not know he was engaging in wrongful conduct, Russ is still not entitled to compensation for “intentional or reckless infliction of emotional distress.” Justice Sweeney, writing for this court, adopted the following explanatory language from the Restatement in explaining this tort:
<<<*** p. not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” ’ ” (Emphasis added.) Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369, 374-375, 6 OBR 421, 426, 453 N.E. 2d 666, 671, quoting 1 Restatement of the Law 2d, Torts (1965) 73, Section 46, Comment d.
Just what did TRW do that was so *53outrageous? The majority relies on three things: (1) the actions of Russ’s supervisors to “mislead” Russ into believing his behavior was not criminal; (2) Russ’s departure following TRW’s internal investigation, which left Russ with the impression he engaged in criminal conduct; and (3) TRW’s act of releasing the results of its investigation to the United States government, thus implicating Russ in criminal activity.
As to the first of these three acts, liability against TRW arises from the conduct of TRW’s agents, Russ’s supervisors, only if Russ’s supervisors were acting within the scope of then-actual or apparent authority. In such a case, Russ’s injury arises within his employment and his remedy, if any, is limited to the workers’ compensation system. However, to avoid this result, the majority finds that these acts were committed outside the scope of employment and, hence, outside the scope of the supervisors’ authority. Then, without any explanation — no more than a wink and a nod — the majority attributes these acts to the corporate entity to support liability outside the workers’ compensation system.
It escapes me how the acts of one employee in supervising another employee can result in liability of the employer outside both the workers’ compensation system and Ohio’s employer intentional tort exception to workers’ compensation. See Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St. 3d 135, 522 N.E. 2d 477. The acts of a supervisor in supervising an employee are by definition within the scope of employment. Hence, this claim should be either decided under the workers’ compensation system or retried as an employer intentional tort case under the appropriate legal standard.6
The other two activities relied upon by the majority are anything but outrageous. Upon discovery of the fraud, TRW conducted an internal investigation that clearly implicated Russ and others in criminal behavior. As a result, TRW discharged Russ as well as others and turned the results of its investigation over to the federal authorities.
What would the majority have had TRW do? What public policy message is the majority sending? The majority appears to place corporations on notice that if they catch miscreants in their midst engaging in criminal conduct, they should neither fire them nor turn them over to law enforcement officials because if they do, civil liability might accrue. This is plainly bad law and even worse public policy. It is also a message from which I dissent.
Holmes, J., concurs in the foregoing dissenting opinion.*54[[Image here]]
*55[[Image here]]
To prove an employer intentional tort, the employee must provide “* * * * proof beyond that required to prove negligence and beyond that to prove recklessness. * * *” Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St. 3d 135, 139, 522 N.E. 2d 477, 481.
In contrast, the tort in this case is “intentional or reckless infliction of emotional distress,” and, more tellingly, the jury underlined the word “recklessly” on the relevant interrogatory suggesting that the jury did not believe an intentional tort occurred.